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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, May 15, 2015

Kmart Cannot Enforce Arbitration Agreement with Class of Infant (Minor) Plaintiffs

InfantIn 2013, Kmart hired Adrian Lopez, then age 16, as a cashier.  Before beginning work, Lopez received online training, and in order to do so, he had to acknowledge receipt of various Kmart forms, including an arbitration agreement.  One month after turning 18, Lopez filed a putative class action lawsuit against his employer for breaches of California's wage and hours laws. Kmart sought to compel arbitration.

Under California Family Code § 6710, minors (under the age of 18) may enter into contracts, but they have a right of disaffirmation "before majority or within a reasonable time afterwards."  In Lopez v. Kmart Corp., Magistrate Corley, of the Northern District of California, held that Lopez disaffirmed his arbitration agreement with Kmart by filing the lawsuit within one month of turning 18 and that one month was a "reasonable" time under § 6710.  

While California Family Code § 6712 excepts certain categories of contracts from the right of disaffirmation, Kmart did not argue that its contract with Lopez fell within any of those categories.  Instead, Kmart sought to argue that the contract could not be disaffirmed because California Family Code § 6711 removes the right of disaffirmation of any contract entered into "under the express authority or direction of a statute."  Magistrate Corley disagreed with Kmart, finding that § 6711 did not apply and that the argument was waived because first raised at oral argument.

Kmart next argued that §6710 only applies to contracts for goods or services and not to employment contracts.  Magistrate Corley simply noted that the statutory language contains no such limitation.  In any case, the contract was for services, as Lopez was to serve as a cashier.  

Finally, Kmart urged the court to deny the disaffirmation in the exercise of its equitable powers.  Magistrate Corley noted that she could not exercise such powers where the authority for disaffirmation was statutory.  Kmart cited to cases from other jurisdictions in which courts had exercised such equitable powers in the employment context, but Magistrate Corley noted that they did so in the context of common law, not statutory infancy doctrines.

May 15, 2015 in Recent Cases | Permalink | Comments (3) | TrackBack (0)

Wednesday, May 13, 2015

New in Print

Tuesday, May 12, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 373 Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly 
Irina D. Manta and David S. Olson 
Hofstra University - Maurice A. Deane School of Law and Boston College Law School 
2 229 Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche 
Damien Geradin 
George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) 
3 173 M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice 
John C. Coates, IV 
Harvard Law School 
4 134 The Validity of Restraints on Alienation in an Oil and Gas Lease 
Luke Meier and Rory M. Ryan 
Baylor University - Law School and Baylor University - Law School 
5 103 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
6 102 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
7 101 Lex Mercatoria 
Gralf-Peter Calliess 
University of Bremen - Faculty of Law 
8 100 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
9 83 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
10 78 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 103 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
2 102 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
3 101 Lex Mercatoria 
Gralf-Peter Calliess 
University of Bremen - Faculty of Law 
4 100 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
5 83 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
6 78 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 
7 77 The Forum Selection Defense 
Stephen E. Sachs 
Duke University School of Law 
8 69 Pluralistic Legal Theories: In Search of a Common Denominator 
Ronen Perry 
University of Haifa - Faculty of Law 
9 67 Shareholder Litigation by Contract 
Verity Winship 
University of Illinois College of Law 
10 59 Online Consumer Contracts: No One Reads, But Does Anyone Care? 
Shmuel I. Becher and Tal Zarsky 
College of Management (Israel) - School of Law and University of Haifa - Faculty of Law 

 

 

May 12, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, May 11, 2015

Weekly News Roundup

BoxingAccording to Philadelphia Magazine, two men who paid to watch the Mayweather-Paaquiano fight on pay-per-view are suing on behalf of a class of viewers who did not get their money's worth because Paquino had an undisclosed shoulder injury.  The suit claims damages for  breach of contract, fraud conspiracy and violation of consumer protection laws. Viewers paid between $89 and $100 to watch the fight.  The suit alleges that the fight should have been cancelled or postponed.

The LA Times reports that a group of students who contracted Leishmaniasis, a parasitic disease that causes painful skin ulcers, while on a trip to Israel are suing the trip's organizers for failing to take adequate precautions to protect the students.  The illness is allegedly caused by sand fly bites.  The suit names the North American Federation of Temple Youth and the Union for Reform Judaism as defendants.  It alleges that the organizations failed to take precautions such as providing the students with insecticides or insect netting and that the organizations provided the students with bug-infested bedding.

The LA Times also reports on a new trend on the hot, new social media: suing your co-founder.  The report suggests that combining handshake deals undertaken in college dormitories, coupled with youthful hasted makes for a dangerous mix.  We are all familiar with the strife among the founders of Facebook, but it turns out that Snapchat, Tinder, Maker Studios and Beats Electronics have all also experienced co-founder difficulties sounding in allegations of breaches of founders' agreements.

May 11, 2015 in In the News, Sports, Travel, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

Victory at the Smelliest Place on Earth

 

Disney Tree of Life
Disney Tree of Life by Clavet

The Orlando Sentinel reported that an arbitrator has reinstated Disney workers who had refused to perform in a Disney Animal Kingdom Show, the Festival of the Lion King.  The workers refused to perform because the unitards they were expected to wear for the show were not clean and dry as required in the Collective Bargaining Agreement between Disney and Teamsters Local 385 of the Services Trade Council Union (Attachment 6, Part C).  

Disney was forced to cancel a performance of the show and then terminated the objecting workers.  Disney will have to pay the workers back-pay for the time they were out of work (minus what they earned at other jobs), and reprimands will be removed from their files.

May 8, 2015 in Labor Contracts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

West Virginia Supreme Court of Appeals Refuses to Enforce Unethical Fee-Splitting Agreement

WV SealGary Rich and Joseph Simioni met in connection with an asbestos case involving West Virginia University.  Rich is an attorney.  Simioni has a J.D. but was never admitted to the bar.  Starting in the 1990s, the two men collaborated on two additional asbestos cases and contracted with out-of-state law firms to help them class action litigation.  It appears that until 2002, the men agreed that they would split the proceeds of their work 50/50.  but then Rich announced there would be an 80/20 split in his favor. The parties then proceeded on this basis and committed their agreement to writing in 2005.  

Rich now contends that he was under the impression that Simioni was a licensed attorney, and he did not realize that Simioni was not licensed until 2000 or 2001.  He consulted with the former Chief Lawyer Disciplinary Counsel of the West Virginia State Bar, who told him that Sinioni “might not be able to get paid ethically."

Simioni eventually filed sued in District Court against the out-of-state law firms, seeking recovery based in quantum meruit, unjust enrichment and breach of an implied contract.  The District Court certified the following question to the Supreme Court of Appeals:

Are the West Virginia Rules of Professional Conduct statements of public policy with the force of law equal to that given to statutes enacted by the West Virginia State Legislature? 

The Supreme Court of Appeals answered in the affirmative, at least with respect to Rule 5.4 of the Rules of Professional Conduct. which prohibits fee-sharing between lawyers and non-lawyers..  The Court held for the first time (but based on numerous authorities) that fee-sharing agreements between lawyers and non-lawyers violate public policy.  The parties sought to persuade the court to find an alternative mechanism for compensating Simioni by setting aside the agreement to share fees and compensate Simioni in quantum meruit, but the Court rejected that as an attempt to circumvent the rule.

May 7, 2015 in Recent Cases, True Contracts | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 6, 2015

Unbridled Growth and Companies that Never Learn

This week, Los Angeles City Attorney Mike Feuer famously filed suit against Wells Fargo claiming that the bank's high-pressure sales culture set unrealistic quotas, spurring employees to engage in fraudulent conduct to keep their jobs and boost the company's profits.  

Allegedly (and in my personal experience as I bank with Wells Fargo), the bank would open various bank accounts against its customer’s wills, charge fees for the related “services,” and refuse to close the accounts again for various official-sounding reasons, making it very cumbersome to deal with the bank.  The bank’s practices often hurt its customers' credit rankings.

Employees have described “how staffers, fearing disciplinary action from managers, begged friends and family members to open ghost accounts. The employees said they also opened accounts they knew customers didn't want, forged signatures on account paperwork and falsified phone numbers of angry customers so they couldn't be reached for customer satisfaction surveys.”  

The city's lawsuit alleges that the root of the problem is an unrealistic sales quota system enforced by constant monitoring of each employee — as much as four times a day.  "Managers constantly hound, berate, demean and threaten employees to meet these unreachable quotas," the lawsuit claims.  Last year, 26% of the bank’s income came from fee income such as from fees from debit and credit cards accounts, trust and investment accounts.  The banking industry is currently set up in such a way that around 85% of institutions would go bankrupt if they do not have fee income.  

This comes only three years after Wells Fargo agreed to pay $175 million to settle accusations that its independent brokers discriminated against black and Hispanic borrowers during the housing boom and treated these borrowers in predatory ways.

All this in the name of “growth,” traditionally thought of as the sine qua non of industrialized economies, even in financially tough times where simply maintaining status quo – and not going out of business - would seem to be acceptable for now from at least a layman’s, logical standpoint. 

In recent years, more and more economists have advanced the view that unbridled growth or even growth per se may simply not be attainable or desirable.  After all, we live on a planet with limited resources – financial and environmental - and limited opportunities.  This especially holds true in relation to the “1% problem.”  Nonetheless, questioning growth has been said to be “like arguing against gasoline at a Formula One race.”  So I’m making that argument here, although I acknowledge that I am not an economist: by setting our national (and personal) economies up for ever-continuing growth, we are playing with fire.  There is only so much of a need for various things and services, as the above Wells Fargo suit so amply demonstrates.  Granted, the global population is growing, but much of that growth is in developing nations where people frankly cannot afford to buy many of the products and services often so angrily pushed by modern companies worldwide.  In the Global North, C-level managers are often rewarded via measurements of growth and if they cannot produce the expected growth results, they risk being fired.  Sometimes, simply doing the right thing by customers and employees may actually be enough as long as the company would remain sound and in business.  Of course, this requires a shift in thinking by shareholders who contribute greatly under our current investment models to the demand for never-ending growth.  Overconsumption and waste is a vast ecological problem as well.  It has been said that “we must reform economics to reflect ecological reality: nature is not, after all, just a pile of raw materials waiting to be transformed into products and then waste; rather, ecosystem integrity is a precondition for society's survival.”

Growth is, of course, good and desirable if possible.  But if, as seems to be the case, it’s coming to a point where we destroy our own chances of healthy long-term survival and wreck the emotional and financial lives of employees and clients in the meantime, something is seriously wrong.

May 6, 2015 in Commentary, Current Affairs, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)

New in Print

Tuesday, May 5, 2015

The Blogosphere Responds to Our Series on Legal Education

ScholarYesterday's post has inspired quite a bit of traffic here and elsewhere.  Over on Brian Leiter's Law School Reports, Michael Simkovic asks whether conditional scholarships are good for law students.  

Deborah Merritt responds on the Law School Cafe and answers the question in the negative.  She thinks conditional scholarships mostly help law schools, and they hurt students by creating a stressful competitive environment.

Michael Simkovic (again on Leiter) disagrees.  He argues that conditional scholarships motivate students to work hard in law school and cites to studies linking motivation and academic performance.

Deborah Merritt shoots back on the Law School Cafe.

And Michael Simkovic again responds on Leiter.  

It is hard for me to keep up with the pace at which these people blog.

I have only a few quick points to make in response to Professor Merritt, whose remarks are largely critical of the position I have taken here:

  • It seems we are all agreed that the disclosure problems related to conditional scholarships have largely been addressed through the ABA website that enables students to comparison shop among scholarship offers from various schools and know their chances of retaining their conditional scholarships.  Some law schools routinely offer a lot of merit scholarships in the first year knowing that most students will not retain them thereafter.  But that information is now easily available, and we will see if students vote with their feet against such a model.
  • Professor Merritt properly chastises me for treating Wikipedia's listing of normalization curves as authoritative.  I think Wikipedia is a good place to start, but my main point is that information about normalization curves should be readily available for each school a student is considering attending.
  • I find the absence of curves in undergraduate grading perplexing, and I find it astonishing that anybody would think non-curves are better than curves.  I could easily design an exam that all my students would ace (above 90% correct) and an exam that all my students would fail (below 60% correct).  But there is nothing holy about base ten, and my aim should not be to design a test so perfectly calibrated that the difference between a 91% and an 89% is meaningful but the difference between 86% and 84% is not.  My aim in assessment is, among other things, to have a tool that helps me distinguish within a group of students who have had the same educational experience.  A curve helps me do that better than random divisions at every point at which the score passes a 0.  
  • Professor Merritt points to a study in which the J.D. placed only sixth in a  ranking of the best graduate degrees.  As if that were a bad thing!  Three of the degrees that ranked more highly are Ph.D. programs likely to take twice as long as the J.D. and the others likely require higher math or computer programming skills.  This extremely high ranking for the J.D. is terrific news.  By the way, the MBA, a frequent alternative to the J.D., ranked 14th.
  • Professor Merritt tells an anecdote about a student who decided not to pursue a J.D. when she learned of conditional scholarships.  She decided to take her graduate tuition dollars elsewhere, but where?  Unless she earned a Ph.D. in statistics, computer science or physics, or a Masters Degree in human computer interaction or  biostatistics, according to the study cited by Professor Merritt, she made a poor choice.

Professor Merritt's second post turns on an anecdote about teaching the same course (torts) the same way to different students and getting very different results.  As a consequence, she had to give students in the "smart section" who did better on the exam worse grades than some students who did worse on the exam in the weaker section.  Three thoughts:

First, one cannot step into the same river twice.  One semester when I taught history at the College of Charleston in the 1990s, I had four sections of Western Civ., all on a Tuesday/Thursday schedule (they were long days!).  Same readings, same outside materials, same assignments, same lecture notes.  Each section developed its own identity.  They were four different courses.

Second, in fifteen years of teaching at both the college and law school level, I have never had a similar problem.  An anecdote is not an argument.  No system of grading is perfect, and I can live with small injustices around the edges of grade normalization.  Whether or not a student retains a conditional scholarship is not determined by her performance in any one course.  

Third, consider the insight of Professor Merritt's plucky college student who decided against a J.D.  Knowing only undergraduate education, the student remarked, “It’s not like there’s a quota on the number of A’s or anything.”  In that world, the undergraduate professor gives A's to all of the students in the "smart section" who "earned" them according to some mysterious but fixed standard.  Outside of the STEM courses, the undergraduate professor can also give As to the best students in the weaker section, even though the same performance would have earned them a B in the "smart section."  Within the STEM courses, imagine the stampede of angry pre-med students from the weaker section who will decry the injustice that there were no A's in their section but eight in the other. I pity the department chair who has to sort out that mess.

Links to Related Posts:

The Current Series 

XI:Another Transparency Issue: Conditional Merit-Based Scholarships
X: Siloing: The Next Unneeded Import from Undergraduate Education
IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

May 5, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (11) | TrackBack (0)

Welcome to the Blogosphere to New Private Law

GoldbergJohn Goldberg (right top) and Henry Smith (right bottom) have launched a new law blog: New Private Law.

Contributors include:

Aditi Bagchi
Shyam Balganesh
Janet Freilich
Andrew Gold
John Golden
Keith Hylton
Daniel Kelly
Greg Klass
SmithDaniel Markovitz
Tom Merrill
Anthony Sebok
Ted Sichelman
Benjamin Zipursky

You can read the introductory post here.

It's quite a line-up!  We look forward to some interesting posts.

May 5, 2015 in Weblogs | Permalink | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 365 Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly 
Irina D. Manta and David S. Olson 
Hofstra University - Maurice A. Deane School of Law and Boston College Law School 
2 217 Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche 
Damien Geradin 
George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) 
3 156 M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice 
John C. Coates, IV 
Harvard Law School 
4 103 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
5 100 Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws 
Ann M Lipton 
Duke University School of Law 
6 99 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
7 96 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
8 84 The Validity of Restraints on Alienation in an Oil and Gas Lease 
Luke Meier and Rory M. Ryan 
Baylor University - Law School and Baylor University - Law School 
9 80 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
10 75 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 103 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
2 100 Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws 
Ann M Lipton 
Duke University School of Law 
3 99 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
4 96 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
5 80 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
6 75 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 
7 68 The Forum Selection Defense 
Stephen E. Sachs 
Duke University School of Law 
8 64 Shareholder Litigation by Contract 
Verity Winship 
University of Illinois College of Law 
9 63 Lex Mercatoria 
Gralf-Peter Calliess 
University of Bremen - Faculty of Law 
10 59 Contractually Adopted Fiduciary Duty 
D. Gordon Smith 
Brigham Young University - J. Reuben Clark Law School 

 

May 5, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, May 4, 2015

Another Transparency Issue: Conditional Merit-Based Scholarships

ScholarOne of the ways in which law schools are allegedly inadequately transparent is in the award of merit scholarships conditional on the students’ achievement of a certain grade point average (GPA), usually 3.0, in law school.  The New York Times set the ball rolling back in 2011, with this article about a law student who lost her scholarship when she only managed a 2.967 GPA.  Law school critics allege that such conditional merit scholarships are a “bait and switch.”  It is an odd claim.  Law schools offer conditional merit scholarships for the same reasons colleges offer them, and there are no claims that the terms of the scholarship are unclear.  Why are law students assumed to be incapable of looking into standard grade normalizations curves for the first year? 

The real mystery is why conditional scholarships for law students come in for so much criticism when they seem to be generally regarded as valuable and successful on the undergraduate level.   The scholarships are, as their name suggests, conditional, and it would be completely unreasonable to continue to grant students merit scholarships when their performance in law school has been disappointing.  Students who lose their merit scholarship have gotten their first year of legal education for free, so what is their harm?  I think the claim for harm is derivative of the larger (and largely baseless) claim that law schools do not benefit their students.

 The Critique

Jerry Organ published an interesting article criticizing competitive scholarships and recommending best practices for the law schools that use them, including better disclosure of scholarship retention rates.  Law School Transparency proposed a new ABA standard that would require all law schools to publish on their websites data about the percentage of students who were able to retain their scholarships after the first year.  

As readers of this blog should know, disclosure is no panacea.  Professor Organ was able to find information about how scholarships work at 160 law schools.  That means that the information was out there.  Since Professor Organ was able to gather information about 160 law schools, it should not be difficult for students to gather relevant information about the one law school that they are considering attending.  Many students can find their law school’s curve by looking on Wikipedia.   Since a lot rides on the decision, one would expect students to investigate, especially since the investigation might not take more than a few mouse clicks.

If law schools were more aggressive and sat down with students offered conditional scholarships and walked them all through the statistics, would anything change?  Would a student choose not to go to law school because she had been told that there was a 50/50 chance that she would lose her scholarship after year 1?  I doubt it.  She would feel confident that she would be one of the successful students and, even if not, she would still have enjoyed a year’s free tuition.

 

Continue reading

May 4, 2015 in Commentary, Law Schools, Recent Scholarship, Teaching | Permalink | Comments (14) | TrackBack (0)

Friday, May 1, 2015

Caveat Vendor in a Banksy Sale in Gaza?

Banksy in BethlehemIn March, while I was co-teaching  a course called International Humanitarian Law in Israel and Palestine with Professor Yaël Ronen, I visited Bethlehem with my students.  Among other things, we saw the image at left, attributed to Banksy, on a wall in Bethlehem.

So today's New York Times story about Banksy's other creations in Gaza caught my eye.  The heart of the story, for the purposes of this blog, is that Banksy apparently painted an image of a weeping Greek goddess an the iron door of a destroyed home in Gaza.  An enterprising Gazan artist bought the door for less than $200, saying he wanted to protect the goddess.  The owner of the door was unaware that the painting could be worth hundreds of thousands of dollars.

According to the Times, the local authorities, Hamas, have confiscated the door, and its ownership and value are to be determined by a court.  I'm not sure what law the courts in Gaza would apply to such a dispute.  Does anybody think the buyer of the door has a duty to disclose its possible worth to the vendor?  

May 1, 2015 in In the News, Recent Cases, True Contracts | Permalink | Comments (1) | TrackBack (0)

Thursday, April 30, 2015

Siloing: The Next Unneeded Import from Undergraduate Education

Silos
Silos, by Scott Davis

I don't know if this is a thing yet, and I hope it doesn't become one, but I have been hearing, here and there, from people involved in legal education reform, that we need to combat "siloing" in the law school curriculum.   You can find denunciations of siloing at lower levels of education here and here and here (for example), and a lot of the anti-silo rhetoric seems to be coming form the U.S. Department of Education.

To the extent that the war on siloing means that undergraduate education (or secondary school education) should be interdisciplinary and that academics should also build bridges across disciplines, I am all for it.  But what is its application to legal education?

The standard anti-siloing spiel in legal education goes something like this:

We teach our students in silos.  They learn contracts in one course and torts in another, property in a third, and civil procedure in a fourth.  But when the client walks into your office, she just has a story, and you have to recognize that all of the different doctrinal areas that you studied in law school could be relevant to that story.  You can't just compartmentalize legal scenarios into one doctrinal silo or another.

 That is obviously true, but it doesn't mean that we should just teach one amorphous course in the first year called Everything that Could Possibly Go Wrong and What to Do About It.  Doctrinal siloing is, in my view, the right approach, certainly in the first year.  Otherwise, students don't learn, for example, that the logic of contractual liability is very different from that of tort liability or that certain doctrines that have the same names work differently in different doctrinal areas.  There is, again in my view, plenty of time in the second and third years to make certain that students understand that one fact pattern can generate issues across the doctrines, but students should never lose sight of doctrinal boundaries and their importance.

A few examples:

  • The other day, I was teaching a bar prep course and going over assignments.  One of my students arrived at the wrong conclusion because he treated assignments according to agency rules.  I was impressed that the student remembered agency rules, but his answer was just wrong.  There was nothing to say except, "Sorry, assignment is different from agency."  
  • I have written here and (more pithily) here about how the state secrets privilege has gotten messed up because courts have applied a doctrine that arises in the contractual context (Totten) to cases that involve torts allegations against the U.S. government and its contractors.  A party to a contract may agree that the content of that contract is secret and therefore non-justiciable; a tort victim makes no such agreement.
  • Many of the craziest moments in the notorious OLC memos from the Bush Administration occur when very smart lawyers, eager to justify outrageous government conduct, draw on inappropriate analogies from other doctrinal areas.  So for example, they got their definition of "severe pain" from a statute that determines what constitutes an emergency medical condition for the purposes of entitlement to certain health benefits, and they consulted criminal law concepts of "necessity" and "self-defense," seemingly unaware of how limited those defenses are in the appropriate doctrinal context. 

So, if somebody starts denouncing "siloing" in the context of discussions of curricular reform, please consider the dangers of eliminating doctrinal silos.

Links to Related Posts:

The Current Series 

IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 30, 2015 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

New in Print

KuttyI am happy to see a publication by my colleague Faisal Kutty (pictured) gracing this list of recent publications.  Way to go, Faisal!

Hiro N. Aragaki, The Federal Arbitration Act as Procedural Reform. 89 N.Y.U. L. Rev. 1939 (2014)

Robert Bejesky, The Economics of the Will to Fight: Public Choice in the Use of Private Contractors in Iraq, 45 Cumb. L. Rev. 1 (2014-2015)

Ann Laquer Estin, Foreign and Religious Family Law: Comity, Contract, and the Constitution. 41 Pepp. L. Rev. 1029 (2014)

Michelle Greenberg-Kobrin, Religious Tribunals and Secular Courts: Navigating Power and Powerlessness 41 Pepp. L. Rev. 997 (2014)

Faisal Kutty, "Islamic law" in U.S. Courts: Judicial Jihad or Constitutional Imperative? 41 Pepp. L. Rev. 1059 (2014)

Daphne Richemond-Barak, Can Self-Regulation Work? Lessons from the Private Security and Military Industry. 35 Mich. J. Int'l L. 773 (2014)

April 29, 2015 in Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, April 28, 2015

Legal Education in the News and on the Blogosphere

I began this series with the question: Why Is the Legal Academy Incapable of Standing Up for Itself?  Paul Campos thinks we are doing far too much of that, going so far as to compare those of us who think legal education is worth defending with Holocaust deniers.   Fortunately for us, I suppose, this blog isn't on anybody's radar, but in any case I think it bears noting that I value the contributions of people who have shed critical light on legal education, although I don't agree that it is anything approaching a scam.  I have gained valuable insights from the work of Law School Transparency, Brian Tamanaha, Deborah Merritt, and Bill Henderson on our sister blog, The Legal Whiteboard, among others.

That said, there is another side of the story.  Legal education is constantly re-forming itself in fundamental ways.  Clinical education has only been with us since the 70s; legal writing programs took off in a major way in the 80s and 90s.  Both represent fundamental shifts in pedagogy in response to perceived deficits in the legal education model.  Those programs continue to develop and expand, now supplemented with robust ASP programs.  All of these things jack up the costs of legal education and all in the name of better preparing students for the profession.  Nobody is fiddling while our students burn.  In fact, at this point, it is clear that everybody in the debate passionately believes that they have the best interests of our students at heart, and I do not doubt their sincerity.  

Meanwhile, just when you thought it was safe to read what the New York Times has to say about legal education, we get another one-sided piece based on a few anecdotes and one piece of scholarship.  I thought I had a lot to say in response, but others have beaten me to it, so I will just provide the links:

Simkovic on Leiter

Stephen Diamond on his own blog

Brian Galle on Prawfsblawg

Deborah Merritt, on whose scholarship the piece relies, on The Law School Cafe 

Links to Related Posts:

The Current Series 

VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 28, 2015 in About this Blog, Commentary, In the News, Law Schools, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Caveat Emptor and Law School Transparency

In this blog series, we recently raised the issue of whether there is sufficient transparency in relation to law schools via, for example, third-party “watchdog” websites and the law schools’ required ABA disclosures.

In my opinion, transparency is a boon to potential law students in this context.  Granted, much information is publicly available to anyone considering law school nowadays.  But for now, choosing a law degree still remains a surprisingly popular choice despite so many warning signs.  Caveat emptor is still a quasi-viable doctrine, that’s true, and some potential incoming students should, as potential future lawyers, learn to discern hope and belief from facts.  But do they?  Not so much, it appears.

Unfortunately, statistics still show that nationwide, only 51% of law graduates are employed in law firm jobs, well below the trend over the past 25 years.   I know, I know, not everyone wants to work for a law firm, but still; only half of our graduates getting a typical job is astonishingly shocking, I think.  An ABA website function lets the general public find out the number of “bar passage required” jobs held by 2013 graduates – not impressive unless the school is highly ranked or in a relatively remote area of the nation.  See another list of the best and worst performers here.

To put this in perspective: the average debt taken on by law school graduates is $84,000 (for public law schools) and $122,580 (for private law schools); a 37% increase over eight years.  Another source found the 2012 median debt to be $140,616.   So, a ballpark figure shows that an “average” student may well be more than $100,000 in debt for a – certainly in some states such as California – less than 50/50% chance of getting a “real” law job. 

Of course, hope springs eternal, and many students beat the odds and end up, over time at least, in good and hopefully mentally rewarding jobs.  For now, though, the more pressure that’s exerted on keeping law schools honest in relation to job prospects, debt, etc., the better, in my opinion.

April 28, 2015 in Commentary | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 361 Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly. 
Irina D. Manta and David S. Olson 
Hofstra University - Maurice A. Deane School of Law and Boston College Law School 
2 260 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
3 179 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 174 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
5 141 Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche 
Damien Geradin 
George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) 
6 116 Insider Trading in Commodities Markets 
Andrew Verstein 
Wake Forest University School of Law 
7 114 M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice 
John C. Coates, IV 
Harvard Law School 
8 101 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
9 99 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 
10 94 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 260 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
2 179 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
3 174 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 101 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
5 99 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 
6 94 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
7 92 Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws 
Ann M Lipton 
Duke University School of Law 
8 90 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
9 76 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
10 70 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 

April 28, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, April 27, 2015

Fixing Your Car Yourself Maybe a Violation of Contractual Rights in the Future

If it were up to General Motors, it may soon be illegal for you to tinker with your own car.  That’s because the Digital Millennium Copyright Act (“DMCA”), an Act that started as anti-piracy legislation about a decade ago, now also protects coding and software in a range of products more broadly.  Your car is one such product if it, as many cars do nowadays, it has an onboard computer.  Vehicle makers promotes two arguments in their favor: first, that it could be dangerous and even malicious to alter a car’s software programming.  Second, per the tractor maker John Deere, that “letting people modify car computer systems will result in them pirating music through the on-board entertainment system.”  “Will”?!  As the Yahoo article mentioning this story smartly pointed out, “[t]hat’s right— pirating music. Through a tractor.” 

Isn’t that an example of a company getting a little too excited over its own products?  Or am I just an incurable city girl (although one that occasionally likes country music)?  Judging from the lyrics to a recent Kenny Chesney hit (“She Thinks My Tractor’s Sexy"), I see that opinions differ in this respect.  To each her own.

Hat tip to Professor Daniel D. Barnhizer of the AALS listserve for sharing this story.

April 27, 2015 in Contract Profs, Current Affairs, Legislation, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Weekly News Roundup

In yet another government outsourcing scheme gone wrong, KOLO TV news is reporting that Nevada is alleging breach of contract against the companies it hired to administer Common Core testing in the state's schools.  Apparently, when thousands of students attempted to log on so that they could take their exams, they received an error message and could not proceed.  Educators across the state are aggrieved, but students across the state are generally fine with it. 

Las_Vegas_slot_machines
Photo by Yamaguchi先生

Nonprofit Quarterly reports that three students, three parents and three alumnae are alleging breach of contract and seeking an injunction to keep open Sweet Briar College in Lynchburg, VA.  They allege that they had entered into express and implied agreements with the College that they would not only have the benefit of a four-year degree from the College but would also enjoy the benefits of being alumnae or of having children who were alumnae.

According to the Des Moines Register, in 2011, an 87-year-old grandmother was playing the slots, when the screen told her that she had a "bonus award" of $41797550.16.  Last week, Iowa's Supreme Court ruled unanimously that she had won $1.85.  They rejected claims of breach of an implied contract and found that the "bonus award" was just the product of a computer glitch.   

April 27, 2015 in Games, Government Contracting, In the News | Permalink | Comments (0) | TrackBack (0)